Punjab-Haryana High Court
Karam Singh vs Sewa Singh on 11 April, 2023
RSA No. 485 of 1997 1 2023:PHHC:050282
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No. 485 of 1997
DATE OF DECISION :- April 11, 2023
Karam Singh ...Appellant
Versus
Sewa Singh and others ...Respondents
CORAM: HON'BLE MR. JUSTICE H.S. MADAAN
Present:- Ms. Neha Jain, Advocate for
Mr. K.S. Dadwal, Advocate for the appellant.
None for the respondents.
***
1. Briefly stated facts of the case are that plaintiff Karam Singh
son of Babu Ram had brought a suit against defendants Sewa Singh, Smt.
Surjit Kaur, Inder Kaur, Daljit Singh, Baljit Singh, Kamal Devi and Pushpa
Devi, all residents of Village Bhullewal Rathan, Tehsil Garhshankar, District
Hoshiarpur seeking a declaration that he is co-owner in possession to the
extent of 1/3rd share in Taur No. 28 and House Nos. 50 and 51 of H.B. No.
29, measuring 15 marlas situated at Village Bhullewal Rathan, Tehsil
Garhshankar, District Hoshiarpur and that sale deed dated 19.2.1985 is null
and void in addition to that craving for grant of permanent injunction
restraining defendant No. 2 Smt. Surjit Kaur from taking forcible possession
of the property or in the alternative for possession by partition of 1/3rd share
of the property.
PARVINDER SINGH
2023.04.12 16:39
I attest to the accuracy and
integrity of this order/judgment
Chandigarh
RSA No. 485 of 1997 2 2023:PHHC:050282
2. As per version of the plaintiff, the suit property was allotted to
Sh. Babu Ram, father of the plaintiff and Sh. Jai Karan Singh and Beant
Singh (since dead) now represented by their legal heirs the defendants, in
lieu of the property left by him in West Punjab now in Pakistan vide Sanad
dated 24.3.1955, such allotment was made by Rehabilitation Department;
after death of Sh. Babu Ram, all three sons i.e. plaintiff as well as Beant
Singh and Jai Karan Singh acquired the ownership rights in the suit property.
When Beant Singh and Jai Karan Singh departed from this mortal world,
their legal heirs inherited their 1/3rd share each in the suit property, however,
Sewa Singh defendant No. 1, who is a heir of Beant Singh had executed a
sale deed with regard to the entire property on 19.2.1985 in favour of
defendant No. 2, therefore, the said sale deed is illegal, null and void since
he could not sell more than his share which was only 1/12 share. On strength
of that sale deed defendant No. 2 wanted to take forcible possession of the
suit property not listening to the requests of the plaintiff to desist from doing
so giving rise to a cause of action to the plaintiff to bring the suit in question.
3. On being given notice, only defendants No. 1 and 2 put in
appearance and offered a contest. In the separate written statements filed by
such defendants, defendant No. 1 denied that the plaintiff had any share in
the suit property contending that suit property did not form part of Taur No.
28 and House Nos. 50 and 51. The answering defendant further denied that
suit property was allotted to Sh. Babu Ram or after death of Sh. Babu Ram,
his three sons inherited that property or in that manner the plaintiff and legal
heirs of Beant Singh and Jai Karan Singh have got any right or interest in the
property in question.
PARVINDER SINGH
2023.04.12 16:39
I attest to the accuracy and
integrity of this order/judgment
Chandigarh
RSA No. 485 of 1997 3 2023:PHHC:050282
4. Defendant No. 1 admitted sale of property to defendant No. 2
contending that the said sale was perfectly valid and he was competent to
execute the sale deed. The answering defendant contended that he had been
in adverse possession of the suit property for over 20 years and he had
become its owner before its sale to defendant No. 2.
5. In the written statement submitted on behalf of defendant No. 2,
he took up a preliminary objection that suit was not maintainable in the
present form as the plaintiff was not in possession of the suit property. On
merits such defendant while denying the assertions in the plaint came up
with a plea that she had purchased the suit property from the previous owner
i.e. defendant No. 1. Both the defendants prayed for dismissal of the suit.
6. On pleadings of the parties following issues were framed :-
1) Whether the plaintiff is co-sharer in possession of the suit
property?OPP
2) Whether Sewa Singh had a right to sell the suit property
vide sale deed dated 19.1.1955? If so to what effect.
3) Whether the sale deed was executed for consideration?
OPD
4) Whether the suit property is ancestral property qua the
plaintiff, his brothers and vendor?OPP.
5) Whether the plaintiff is entitled to declaration prayed for?
OPP
6) Whether the plaintiff is entitled to permanent
injunction prayed for?OPP.
7) Whether the plaintiff is entitled to possession of one third
share of the suit property by way of partition?
8) Whether defendant and his father had been in adverse
possession of the suit property for the last more than 25
years as alleged, if so to what effect?OPD.
PARVINDER SINGH
2023.04.12 16:39
I attest to the accuracy and
integrity of this order/judgment
Chandigarh
RSA No. 485 of 1997 4 2023:PHHC:050282
9) Whether the plaintiff is estopped from filing the suit by
his act and conduct?OPD.
10) Relief.
7. The parties were afforded adequate opportunities to lead
evidence in support of their respective claims.
8. After hearing arguments, the suit of plaintiff was dismissed by
the trial Court of Senior Sub Judge, vide judgment and decree dated
9.4.1990, however, on an appeal having been preferred by the plaintiff the
case was remanded to the trial Court with a direction to appoint a local
Commissioner to fix the identity of the property and then to decide the case
afresh.
9. After receipt of case by way of remand in the trial Court, a
local Commissioner was appointed who had submitted his report. Thereafter
the case was decided afresh by giving issues wise findings.
10. Issue no. 1 was decided against plaintiff whereas issue No. 8
was decided in favour of defendant No. 1. Issues No. 2 and 3 were decided
in favour of defendants. Issue No.4 was decided against plaintiff. Issue No. 5
was decided against the plaintiff. Issue No. 6 was decided against the
plaintiff. Issue No. 7 was decided against the plaintiff. Issue No. 9 was
decided in favour of defendants.
11. As a result of issue wise findings vide judgment dated
13.2.1993 the suit of the plaintiff was dismissed. On an appeal having been
preferred by the plaintiff before District Judge, Hoshiarpur the same was
assigned to Additional District Judge, Hoshiarpur, who vide judgment and
decree dated 20.11.1996 had dismissed the said appeal.
PARVINDER SINGH
2023.04.12 16:39
I attest to the accuracy and
integrity of this order/judgment
Chandigarh
RSA No. 485 of 1997 5 2023:PHHC:050282
12. Still feeling aggrieved, the plaintiff has knocked at the door of
this Court by way of filing Regular Second Appeal, notice of which was
given to respondents. Earlier respondents No. 1 and 2 had put in appearance
through counsel but subsequently they stopped appearing, therefore, the
Regular Second Appeal is being disposed of after hearing learned counsel
for the appellant plaintiff.
13. I have heard learned counsel for the appellant plaintiff besides
going through the record.
14. The trial Court in light of pleadings of the parties and on in
depth analysis of the evidence brought on record by the contestants while
considering the legal position had rejected the claim of the plaintiff by
referring to the Sanad dated 24.3.1955 Ex.PW6/A issued by Managing
Officer, Rehabilitation Department. The trial Court had observed that Taur
No. 28 and Houses No. 50 and 51 in Village Bhullewal Rathan were allotted
not to Babu Ram but to the plaintiff and his two brothers Beant Singh and
Jai Karan Singh on 19.1.1960 and even that allotment remained on papers
since there is nothing on record to prove that plaintiff along with other
brothers Beant Singh and Jai Karan Singh came in possession of that
property. Neither the area of the allotted property nor the boundaries are
mentioned in Sanad in question from where plaintiff could come to know
that area of property is 15 marlas and it's boundaries are East : Khushi Ram,
West : Street; North : Nirmal Singh and South Street as have been given by
him in head note of the plaint.
15. With regard to the Shajra Shikni Ex.PW4/A got produced by
plaintiff from PW4 Onkar Singh, the trial Court has observed that this
document is also of not much help to the plaintiff since the original
PARVINDER SINGH
2023.04.12 16:39
I attest to the accuracy and
integrity of this order/judgment
Chandigarh
RSA No. 485 of 1997 6 2023:PHHC:050282
document did not bear signatures of any Revenue Officer and rather it is in
torn condition; no date of its preparation is mentioned, therefore, this
document is incapable of proving identity of the property. With regard to
sale deed Ex.P1 executed by Beant Singh brother of the plaintiff, vide this
document Beant Singh later on had sold Taur bearing No. 28 and houses No.
50 and 51 for Rs.400/- in favour of Khushi Ram on 26.4.1965 which sale
deed had not been challenged by the plaintiff. The trial Court has observed
that Taur and house numbers mentioned in the sale deed are the same which
had been given in Sanad Ex. PW6/A. Plaintiff could challenge that sale and
connect that land with alloted property on the basis of numbers but he did
not opt to do so rather he had challenged sale of that property which had
been made by defendant No. 1 in favour of defendant No. 2 vide sale deed
dated 19.2.1985 Copy of that being Ex.D3. However, in the said sale deed
numbers of the sold property have not been mentioned so as to connect the
same with property recorded in Sanad Ex.PW6/A. It has further been
observed that there has not been any evidence that plaintiff had been in
possession of any portion of property at any time rather plaintiff himself had
admitted in his statement that he is residing in village Cholang, which is at a
distance of 20/25 kms. from the disputed property, therefore, the plaintiff
was not proved to be co-sharer in possession of the suit property whereas
claim of defendant and his father being in adverse possession of suit
property of last more than 25 years was accepted. The trial Court had
returned a categorical finding that suit property cannot be held to be
ancestral qua the plaintiff and his brothers Beant Singh and Jai Karan Singh
and observed that Beant Singh alone had been in possession of the property
for about 27/28 years he had constructed houses on it in his own right to
PARVINDER SINGH
2023.04.12 16:39
I attest to the accuracy and
integrity of this order/judgment
Chandigarh
RSA No. 485 of 1997 7 2023:PHHC:050282
which the plaintiff did not raise any objection and after death of Beant Singh
defendant No. 1 Sewa Singh had inherited his property, therefore, sale deed
executed by Sewa Singh dated 19.2.1985 in favour of defendant No. 2 Smt.
Surjit Kaur was held to be legal and valid. The plaintiff was not found
entitled to decree for declaration, permanent injunction or possession of
1/3rd share by way of partition.
16. The Appellate Court of Additional District Judge, Hoshiarpur
agreed with the trial Court with regard to findings on all the issues. It was
observed that appellant plaintiff had failed to identify the property in dispute
though a local Commissioner was appointed for demarcation but he after
visiting the spot failed to identify the property on the grounds that due to
construction demarcation was not possible and further more demarcation
was not possible because length and breadth of area of allotted property was
not mentioned in Sanad.
17. With such concurrent findings being there which are based on
proper appraisal of and correct interpretation of law, I do not find any reason
to upset the judgments passed by the trial Court which do not come out to be
suffering from any illegality or infirmity.
18. I do not find merit in the Regular Second Appeal. No substantial
question of law arises. The appeal is dismissed accordingly.
(H.S. MADAAN)
JUDGE
April 11, 2023
p.singh
Whether speaking/reasoned Yes/No
Whether Reportable
PARVINDER SINGH
Yes/No
2023.04.12 16:39
I attest to the accuracy and
integrity of this order/judgment
Chandigarh
